Identifying Children When Your Ancestor Didn’t Leave a Will

Wills can be invaluable to our genealogy research. But if your ancestor didn't leave a will, don't fret. There are still tons of clues in the estate papers. In fact, you might find even more than if he or she left a will. Here's how to spot the children when your ancestor didn't leave a will.

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When a person makes a will, they can leave their estate to whomever they choose. They don't have to include all of the children. They don't have to include any of the children!

Dying Intestate

However, when a person dies intestate — meaning without a will — then the laws of the state determine how that estate was divided. You'll need to be familiar with the laws of descent for that state in that time period. For example, let's say that one of the married daughters died before her father. The law could be that her children divide what would have been her share -- or it could be that her children (the deceased's grandchildren) are left out or given only a portion of what would have been their mother's share.​

Once you know the laws of descent, you can piece together who the heirs are and how they are related to the deceased. (Need some guidance on how to find the laws of descent for a particular state? Check out Judy Russell's blog, The Legal Genealogist. She has written a ton of posts on the subject.)

What to Look For

If your ancestor died without a will, look for his probate packet (sometimes referred to as a probate case or loose papers). In that packet, look through all of the documents, but be on the lookout for something called a final distribution. This is where the money gets paid to the heirs.​

(Note: If there is no final distribution, be sure to go through all of the receipts. Look for the ones that say they are for shares of the estate, distributive shares, etc. These will differentiate them from receipts for paying off debtors or other expenses.)​

A Real-Life Example

Here's an example from a case out of Vinton County, Ohio. William Bone died in 1867 without a will. In his probate packet, there is no final distribution, but there are several receipts where the heirs have acknowledged that they received payment from the estate.

Elizabeth Vinning, $19.78 "share of the personal property of my father William Bone's estate"

From the laws of descent in Ohio at the time, when a person died intestate, the estate would be divided between the children equally. If a child died before his/her parent, that child's children (grandchildren of the deceased) would divide the share.

We know that William (the deceased) had children. It's spelled out on the first two receipts. The amount each received tells us something. Elizabeth and Samuel each received $19.78. That tells me that a full share of this estate is $19.78; that's what a child of the deceased received.

What about the other 3 people?

Aaron is a son-in-law (spelled out on the receipt). We need to do a little more digging to see if his wife (William's daughter) had to still be living at the time of William's death to have receive a share. (It's also possible that Aaron's wife is still living, but Aaron was the one who actually received the money.)

What about Henry and Henrietta? Each received a full share of William's estate — the amount that was paid to a child of William's. That gives us two possibilities for each:

A child of William Bone, deceased -- or --

The only child of one of William's children who died before William did

​The reason I know that for either to be a grandchild of William's he or she would have to be an only child is because of the amount they received. Any grandchildren would be splitting their parent's share. The only way for a grandchild to get the full $19.78 is to be an only child.

Henry and Henrietta cannot both be William's grandchildren and be brother and sister. If they were siblings and their parent was one of William's deceased children, they would be splitting their parent's claim (based on the laws of descent in Ohio at that time).

Henry and Henrietta could be brother and sister. They could also be William's grandchildren. They just can't be both.

We will need to do more research to see how Henry and Henrietta fit into the William Bone family. However, by knowing how intestate cases in Ohio at that time were distributed and paying attention to how much each heir received, we have established that Henry and Henrietta are either children or grandchildren. That's something that we might not have had if William left a will.

Conclusion

Don't be discouraged if your ancestor didn't leave a will. Look through the papers of the probate file and pay attention to how much each of the heirs received. It might take some math, but there are clues to relationships there.

Several of my ancestors died intestate. The details found in those probate files have been very useful. Some of the ones with wills just said “my heirs, of which there are 5” with no names. The vouchers of distribution in the ones without wills were much more helpful.

You bring up a tricky thing about wills — just because someone is named as an heir, it doesn’t mean that he or she is a child of the deceased. It could be anyone. When a person dies without a will, however, we can figure out exactly how those people fit in.

In my grandfather’s personal papers, I discovered a deed of partition from 1854 that spelled out how my 3rd great-grandmother received her inheritance from her grandfather (my 5th great-grandfather) and how that inheritance was passed on when she died before her husband. The property had been left to her in trust with her husband not to have any interest in or control over it because he was considered a spendthrift. The deed shows that she died shortly after giving birth, names the child she gave birth to and gives its date of death, divides the shares among her children and then divides the dead child’s share among its heirs which included its father. Also included in granddaddy’s papers was an executor’s copy of my 5th great-grandfather’s will mentioned in the deed of partition. It names my 3rd great-grandmother and her sister as his granddaughters, gives the sister’s married name and names the slaves each granddaughter was to inherit as well as giving a description of the land each was to inherit. These papers allowed me to reconstruct 3 generations of my family in Colleton County, SC – a county that suffered near total record loss during the Civil War. A real goldmine! And another case of how deed records are so useful.

Aha! THANK YOU for what SHOULD be the solution to connect my missing link to his mother, a real Daughter of the American Revolution. Now, my only issue is finding the descent laws of New Jersey in 1800. I’ve found them for 1846, but before……?????

You might want to ask Judy Russell over at legalgenealogist.com. (Click the “Ask TLG” link in the top right-hand corner of her site.) I can’t promise that she’ll respond. As she says on her site, “(No promises, of course: there are only so many hours in the day, so many blog posts in a year…)”

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